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2024 (11) TMI 799 - HC - FEMACondonation of a delay of 138 days in filing an appeal - Order of Adjudicating Authority dropping the charges framed against the notice being Show Cause Notice issued u/s 6 (3)(a) and (h) of FEMA - HELD THAT - Having heard the learned advocates for the respective parties and having perused the averments made in the application as well as the decisions relied upon, reading the proviso to Section 35 of the FEMA Act and in view of the judgment of the Hon ble Supreme Court in the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT , this Court would have no jurisdiction to condone the delay in excess of 60 days . As can be noticed from the averments made in the application, what is sought to be challenged in the present appeal, is the order dated 27.09.2023 passed by the Appellate Authority, which is filed almost after delay of 138 days i.e. beyond the period of outer limit of 60 days. In view of the aforesaid expressive provision with regard to prescribed period curtailed for condonation of delay in the Act itself, the present application is held to be not maintainable.
Issues: Condonation of delay in filing appeal under FEMA Act.
In this judgment by the Gujarat High Court, the main issue was the condonation of a delay of 138 days in filing an appeal challenging an order passed under the Foreign Exchange Management Act, 1999 (FEMA). The applicant sought condonation of the delay caused in filing the appeal against the order passed by the Adjudicating Authority, which dropped the charges framed against the notice under various sections of FEMA and its regulations. The respondents objected to the maintainability of the application, citing Section 35 of the FEMA Act, which allows an appeal to be filed within a further period not exceeding 60 days if the appellant was prevented by sufficient cause. The respondents relied on judicial precedents, including a decision of the Hon'ble Supreme Court and the High Court of Bombay, to support their objection. The Court considered the proviso to Section 35 of the FEMA Act, which limits the period for condonation of delay to 60 days. The Court referred to the decision of the Hon'ble Supreme Court in Singh Enterprises case, where it was held that there is a complete exclusion of Section 5 of the Limitation Act in such matters. The Court also mentioned the decision of the Hon'ble High Court of Bombay in Union of India vs. Ashok J. Ramsinghani, which supported the view that delay cannot be condoned beyond the prescribed period under Section 35 of the FEMA Act. The applicant's counsel was unable to distinguish these judgments, leading the Court to conclude that it had no jurisdiction to condone the delay in excess of 60 days. Ultimately, the Court held that due to the clear provision in the FEMA Act regarding the time limit for condonation of delay, the application seeking condonation of a 138-day delay was not maintainable. The Court dismissed the application, stating that it stood dismissed based on the specific time limit prescribed in the Act itself, which did not allow for condonation of delays exceeding 60 days.
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